PRINCIPLES OF THE CONSTITUTION AND THE PROTECTION
OF THE RIGHTS OF THE PERSON
VYTAUTAS SINKEVICIUS
Justice of the Constitutional Court of
the Republic of Lithuania
The activity of the Constitutional Court ensuring the protection of rights and freedoms of the person for the most part is decided by understanding of what makes the Constitution. The jurisprudence of the Constitutional Court demonstrates that the Constitutional Court follows the rule that the Constitution is composed not only of legal rules provided by the Constitution, but also of the principles of the Constitution; the Constitution is also made of the doctrine of the Constitutional Court-the Constitution is the interpretation of constitutional provisions by the Constitutional Court.
It is noteworthy that not everyone accepts the opinion that the Constitution is formed not only of its text, legal norms provided therein, but also of the principles of the Constitution and the doctrine of the Constitutional Court. This concept of the Constitution in mostly unacceptable to the politicians since in case of a dispute concerning the concept of the true contents of the Constitution, the alleged incompatibility or inner conflict of separate constitutional provision, it deprives the politicians of a possibility (or at least considerable diminishes it) to request for amendment or supplement of the Constitution according to the concept of politicians. Things that may be construed are not necessarily to be changed!
A number of constitutional principles are directly consolidated in the Constitution. However, there are quite a few of the constitutional principles that the Constitutional Court has deduced from the Constitution. Constitutional principles that are extremely significant for the protection of rights and freedoms of the person, namely, the principle of law-governed state, the principle of separation and division of powers, the proportionality principle, the principle of the protection of legitimate expectations, the principle of appropriate legal procedure and other principles are reflected in different provisions of the Constitution, and they may not be originated from a single or a few provisions of the Constitution.
Under Paragraph 1 of Article 6 of the Constitution, the Constitution shall be an integral act. Values consolidated by the Constitution compose a harmonious system and are in balance; no provision of the Constitution may be construed so that other provision of the Constitution would be negated or distorted. Though there exist the grounds for the dispute whether the constitutional principles "derive" from the rules consolidated in the Constitution, or these principles exist "alongside" with the rules of the Constitution (the principles are somewhat "put on" those legal rules and thus decide the contents the legal rules, legal regulation), however, since the beginning of its activity the Constitutional Court, while passing the rulings, also in the cases related with the rights of the person, has followed not only the articles of the Constitution (legal norms provided therein) , but also the constitutional principles.
It has been mentioned that there are quite a few constitutional principles which have been "derived" from the Constitution. The contents of respective constitutional principles has been gradually "derived" from the Constitution - the Constitutional Court did so by investigating if the laws, acts of the President of the Republic, acts of the Government were not in conflict with the Constitution. Because of increasing jurisprudence of the Constitutional Court, the concept of the constitutional principles is broadened, new elements and aspects of these principles are revealed. It is also noteworthy that often the same provisions which are specified as an element of a corresponding constitutional principle in some ruling of the Constitutional Court, are indicated as independent constitutional principle in other rulings of the Constitutional Court and become a constitutional measure which a disputed rule of a law or substatutory act is compared with.
For instance, the protection of legitimate expectations is held both a constituent element of the constitutional principle of law-governed state and is understood as a constitutional principle itself; the imperative of justice is held both an inseparable element of the constitutional principle of law-governed state and is considered a constitutional principle; the protection of rights and freedoms of the person is held both a constitutional principle and an element of the constitutional principle of law-governed state.
All of this shows that the constitutional principles are very capacious, they embrace different elements, these elements may intertwine in different ways and be not only a constituent part of corresponding constitutional principles, but may be held as constitutional principles themselves.
This concept of constitutional principles provides the Constitutional Court with additional possibilities to motivate its decisions - those which recognise a law, a substatutory act to be in conflict with the Constitution, and also those which do not hold them to be in conflict with the Constitution. Alongside this concept of the constitutional principles allows the Constitutional Court to compare a disputed law, substatutory act not only with a concrete article of the Constitution, but also with a corresponding constitutional principle the content of which is always broader that that of a concrete legal rule consolidated by the Constitution. This means that the Constitutional Court has more possibilities to defend violated rights and freedoms of the person.
In the cases which are related with the protection of rights and freedoms of the person the Constitutional Court mostly gives assessment to disputed laws and substatutory acts through the constitutional principles of law-governed state, proportionality and the protection of legitimate expectations.
In its ruling of 26 October 1995, the Constitutional Court held that in a democratic society the priority is given to an individual, therefore, everything that is related to the fundamental human rights and freedoms must be regulated by laws1.
The Seimas cannot delegate, by means of a law, the right to the Government to regulate the relations linked with human rights and freedoms. Human rights and freedoms, their content, their safeguarding and legal guarantees of their defence must be established by laws. In a case on the compliance of provisions of the law on state secrets and their protection with the Constitution the Constitutional Court investigated whether the legal norms establishing that the list of state secrets shall be confirmed by the Government were not in conflict with the Constitution. The Court held that the approval of the list of state secrets (respective selection of information, the establishment of the content of the list, etc.) is directly related to restriction of human right to information. There being no precise criteria formulated by a law of recognition which information is a state secret, the Government was virtually commissioned to regulate relations which are the matter of legal regulation but not to particularise the law. Thereby the constitutional principle of protection of human rights by means of a law was violated2.
In another case, while investigating a Government resolution marked "top secret," the Constitutional Court emphasised that the legal normative acts (thus, including laws) regulating relations linked with the constitutional human rights and freedoms as well as their implementation should not contain any classification markings3. Therefore, under the Constitution, there may not be any secret laws or legal acts regulating human rights and freedoms and implementation thereof.
Not only a law providing for groundless prohibitions restricting human rights and freedoms may be recognised to be in conflict with the Constitution but also a law which does not provide for the rights which ought to be provided in it. For instance, it used to be established in the Statute of the Seimas that if there is an effective court judgement of conviction against a member of the Seimas (i.e. the court recognised the member of the Seimas guilty of commission of a crime and imposed punishment on him), the Seimas may revoke the mandate of the member of the Seimas, when the latter does not participate in the sitting in which the issue of the revocation of his mandate is decided. The Constitutional Court held that the Statute of the Seimas did not establish that the member of the Seimas who has been convicted by the court to imprisonment for commission of a crime, who is being impeached, has the right to participate in the impeachment proceedings as a subject who has been accused and to defend himself. Such failure to establish the rights means that the rights of the person are restricted, since the impeached person is not guaranteed the right to be familiarised with the accusation on the grounds of which the issue of revocation of the mandate of the member of the Seimas is decided, his right is not secured to give evidence, the right to participate in the pleadings, and the right to counsel4.
The Constitutional Court has investigated if Article 317 of the formerly valid Criminal Procedure Code, according to which in cases when the identification particulars of a witness or a victim have been classified during the pre-trial investigation the court could: 1) not to summon a classified person to the court hearing and to read orally his testimony given during the pre-trial investigation; 2) to summon a classified witness to the court and question him in the absence of the participants of trial; 3) the court could question a classified witness or victim in a non-public hearing after it has created acoustic or visual barriers for the other participants to the judicial proceedings so that they would not be able to determine the identity of the person questioned, was not in conflict with the Constitution.
Thus, the said article of the Criminal Procedure Code established the discretion of the court to choose one of the specified alternatives. The Constitutional Court has held that this legal regulation restricted the right of the accused to give questions to the anonymous witness or victim or to take part otherwise in the course of the investigation of the testimony of the said persons as well as to question the credibility of the testimony presented by the aforementioned persons. The Constitutional Court recognised that Article 3171 of the Code of Criminal Procedure was in conflict with the Constitution to the extent that it did not guarantee the right of the accused to give questions, either himself or through the court, to an anonymous witness or victim, and due to this his right to participate in the investigation of evidence was restricted. Such legal regulation violated the right of the accused to defence as well as to the fair consideration of the case5.
The provision that an article of a law to the extent that it does not provide for a concrete right of the person is in conflict with the Constitution has been formulated in other rulings of the Constitutional Court as well6.
It is noteworthy that the Constitution Court enjoys the constitutional powers to investigate the compliance of these laws (parts thereof) with the Constitution also in the cases when due to the fact that the said legal regulation has not been established in particularly those laws (parts thereof) the principles and/or norms of the Constitution might be violated.
The Constitutional Court enjoys the constitutional powers to also investigate the compliance of those substatutory acts (parts thereof) passed by the Seimas, the Government and the President of the Republic which do not establish certain legal regulation with the Constitution and/or laws in the cases when due to the fact that the legal regulation is not established in these particular substatutory acts (parts thereof) the Constitution and/or laws may be violated.
When the rights and freedoms of the person are established by laws as well as their implementation is regulated, one cannot establish any legal regulation whereby the constitutional right of the person to apply to court concerning the defence of his violated rights and freedoms might be restricted or denied. The Constitutional Court has held that in Paragraph 1 of Article 30 of the Constitution providing that "the person whose constitutional rights or freedoms are violated shall have the right to apply to court" the constitutional right of the person to have an impartial arbiter of the dispute is established (Constitutional Court rulings of 1 October 1997 and 12 July 2001). Paragraph 1 of Article 30 of the Constitution establishes the constitutional principle of the essential protection priority and universality the effectiveness of which is directly related to the provision of Article 29 of the Constitution that all persons shall be equal before the law, the court, and other state institutions and officials. One cannot restrict or deny, by means of laws or other legal acts, the right of the person to apply to court, since there would appear threat to one of the most important values of a state under the rule of law. The person must be guaranteed defence of his violated rights in court irrespective of his legal status. The Constitutional Court has noted that, under the Constitution, the legislator has a duty to establish the legal regulation whereby all disputes on violations of rights and freedoms of persons might be settled in court. One may also establish a procedure for out-of-court settlement of disputes, however, it is not permitted to establish any legal regulation whereby the right of the person who thinks that his rights or freedoms have been violated to apply to court might be restricted or denied7. From the constitutional right of the person to apply to court as well as the constitutional right of the person to defence stems a duty for the legislator to particularise, by means of laws, as to how these constitutional rights are implemented and to ensure that an opportunity to implement these rights is a real one.
In the cases which are related with the guaranteeing of the right of the person to a fair trial the constitutional principle of the state under the rule of law is interpreted in the jurisprudence of the Constitutional Court inter alia as requiring that jurisdictional and other law applying institutions be unbiased and independent, that they attempt to establish the objective truth and that they pass their decisions on the basis of law only, that this is only possible when the proceedings are public, the parties to the proceedings enjoy equal rights, while the pleadings in court, especially those regarding the rights of the person, are decided by insuring that the said person should have the right and opportunity to defend his rights8. The constitutional principle of the state under the rule of law is understood as also meaning that in the state under the rule of law the right of an individual to defend his rights is unquestionable, that a person may not be recognised guilty of commission of crime nor criminal punishment may be administered to anyone without proper judicial procedure permitting the accused to be familiarised with everything he is being charged with and on what basis the charges against him are founded, as well as allowing him to prepare and present evidence for the defence, that the participants of trials-the public prosecutor, the accused, the defence, the victim and his/her representative, the civil plaintiff and the civil respondent and their representatives-must be guaranteed by laws equal rights to present evidence, to take part in the investigation of the evidence and to submit pleas, that cases must be investigated on the basis of the contention principle.
The principal provision has been formulated in the Constitutional Court rulings that laws cannot establish any legal regulation whereby the person, while implementing a certain constitutional right, would lose an opportunity to implement another constitutional right. Investigating whether the provisions of the Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor's Office and Court were not in conflict with the Constitution, the Constitutional Court held that under Article 4 of the said law, the damage for the person as regards his unlawful conviction is compensated only in cases when the effective judgement of conviction is reversed. If a non-effective judgement of conviction is reversed, the person, under the law, does not enjoy the right to demand compensation of damages. Thus, the legal regulation established in the law also presupposes a legal situation where a person, while implementing his constitutional right to apply to court, i.e. the right that his case be investigated under the appeal procedure, cannot implement another constitutional right, i.e. the right that material and moral damage inflicted on him be repaid. The Constitutional Court emphasised that the Constitution does not permit to establish any legal regulation whereby the person, while implementing a certain constitutional right, loses an opportunity to implement another constitutional right. In the case in which it was investigated whether the provisions of the Law on State Social Insurance under which not full social insurance pension was paid for working pensioners but only its part were not in conflict with the Constitution, the Constitutional Court held that under Paragraph 1 of Article 48 of the Constitution each human being may freely choose a job and business, that the constitutional freedom of the human being to choose a job or business presupposes the duty of the legislator to create legal preconditions for the implementation of this freedom. Under the Constitution it is not permitted to establish any legal regulation whereby the legal regulation under which an opportunity for the person who has been awarded and paid old age pension, would be restricted, due to this, to freely choose a job and business, although he meets the conditions provided for by the law. The legal regulation under which the person cannot freely choose a job and business due to the fact that upon the implementation of this right he would not be paid the awarded old age pension or part thereof which was paid until then, also must be considered as a restriction of an opportunity to freely choose an occupation or business. The Constitutional Court ruled that the disputed provisions of the Law on State Social Insurance were in conflict with the Constitution9.